Citation NR: 9724215
Decision Date: 07/14/97 Archive Date: 07/21/97
DOCKET NO. 96-31 722A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for a lung disorder,
claimed a residual of exposure to asbestos.
ATTORNEY FOR THE BOARD
D. P. Havelka, Associate Counsel
INTRODUCTION
The veteran’s active military service extended from June 1948
to January 1968.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from an April 1996 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida. That rating decision, in part,
denied service connection for chronic obstructive pulmonary
disease (COPD) as a result of asbestos exposure.
In the April 1996 rating decision, the RO also denied service
connection for hypertension, diabetes mellitus, obesity,
degenerative arthritis, and peripheral neuropathy. The Board
notes that the veteran did not claim service connection for
these disorders. Moreover, the veteran did not take issue
with the denial of service connection for these disorders in
his Notice of Disagreement or his Substantive Appeal (VA Form
9). Therefore, these issues are not on appeal and are not
properly before the Board.
The Board notes that the veteran has pursued this appeal
without the assistance of a representative. While the
veteran is free to proceed in this manner, the Board simply
reminds him that assistance, and representation, is available
from any number of accredited veterans’ service organizations
and his state’s veterans’ department.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that the RO committed error in denying
service connection for a lung disorder as a residual asbestos
exposure. He argues that he was exposed to asbestos during
active service. He avers his exposure was during service on
Navy ships. He asserts that he has a current lung disorder
as a result of this alleged asbestos exposure.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appellant has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim for
service connection for a lung disorder as a residual of
asbestos exposure is well grounded.
FINDINGS OF FACT
1. The service medical records do not show any asbestos
related lung disorders during service.
2. There is no competent medical evidence of a current
asbestos related lung disorder.
3. There is no medical opinion, or other competent evidence,
linking any current lung disorder to the asbestos exposure
during the veteran’s active military service.
4. The veteran has not presented competent evidence of a
nexus between the his current COPD and asbestos exposure
during service.
CONCLUSION OF LAW
The appellant has not presented a well grounded claim for
service connection for a lung disorder as a residual of
asbestos exposure, and therefore there is no statutory duty
to assist the appellant in developing facts pertinent to this
claim. 38 U.S.C.A. §§ 101(16), 1110, 1131, 5107(a) (West
1991); 38 C.F.R. § 3.303(b) (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West
1991); 38 C.F.R. §§ 3.303, 3.304 (1996).
The law provides that “a person who submits a claim for
benefits under a law administered by the Secretary shall have
the burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is
well grounded.” 38 U.S.C.A. § 5107(a) (West 1991).
Establishing a well grounded claim for service connection for
a particular disability requires more than an allegation that
the disability had its onset in service or is
service-connected; it requires evidence relevant to the
requirements for service connection and of sufficient weight
to make the claim plausible and capable of substantiation.
See Franko v. Brown, 4 Vet.App. 502, 505 (1993); Tirpak v.
Derwinski, 2 Vet.App. 609, 610 (1992); Murphy v. Derwinski,
1 Vet.App. 78, 81 (1990).
The three elements of a “well grounded” claim are: (1)
evidence of a current disability as provided by a medical
diagnosis; (2) evidence of incurrence or aggravation of a
disease or injury in service as provided by either lay or
medical evidence, as the situation dictates; and, (3) a
nexus, or link, between the inservice disease or injury and
the current disability as provided by competent medical
evidence. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995),
aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996); see also
38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1996).
Generally, competent medical evidence is required to meet
each of the three elements. However, for the second element
the kind of evidence needed to make a claim well grounded
depends upon the types of issues presented by a claim.
Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). For some
factual issues, such as the occurrence of an injury,
competent lay evidence may be sufficient. However, where the
claim involves issues of medical fact, such as medical
causation or medical diagnoses, competent medical evidence is
required. Id. at 93.
In this case, the determinative issues presented by the claim
are (1) whether the veteran had exposure to asbestos during
service; (2) whether he has any current lung disorder; and,
if so, (3) whether this current disability is etiologically
related to asbestos during active service. The Board
concludes that medical evidence is needed to lend plausible
support for the second and third issues presented by this
case because they involve questions of medical fact requiring
medical knowledge or training for their resolution. Caluza
v. Brown, 7 Vet.App. 498, 506 (1995); see also Layno v.
Brown, 6 Vet.App. 465, 470 (1994); Espiritu v. Derwinski, 2
Vet.App. 492, 494-95 (1992). However, lay evidence may be
sufficient to support the first issue in this case. Caluza,
7 Vet.App. at 506; Layno, 6 Vet.App. at 469, citing Dixon v.
Derwinski, 3 Vet.App. 261, 263 (1992); Garlejo v. Derwinski,
2 Vet.App. 619, 620 (1992).
The veteran submitted copies of his discharge papers, DD
214s. These reveal that the veteran served as an Aviation
Electrician’s Mate in the Navy for approximately 20 years.
These records also reveal that the veteran had approximately
6 years of sea service. His basic assertion is that during
his sea service he served on Navy aircraft carriers and was
exposed to asbestos which was used as insulation aboard these
ships.
The veteran’s service medical records appear to be complete.
They contain entrance and separation examination reports and
treatment records spanning his entire period of active
service. A review of the service medical records reveals
that in August 1964 the veteran had complaints of chest pain.
X-rays revealed “minimal patchy and linear infiltrate right
lower lobe.” Some effusion was also noted. The veteran was
hospitalized and further testing resulted in a diagnosis of
acute cholecystitis, which is not a lung disorder. There is
no indication of any lung disorder in the veteran’s service
medical records and his December 1967 separation examination
revealed that his lungs were normal with no abnormalities
noted by the examining physician.
The veteran submitted a large volume of private medical
evidence. In December 1991 the veteran was hospitalized for
a lung disorder. The discharge summary provided a medical
history that the veteran was generally in good health most of
his life and that he had been a two pack a day smoker who
quit in 1984. Pulmonary function tests (PFTs) revealed
“moderate obstructive lung disease with severely reduced
diffusion capacity consistent with emphysema though the
reduction in total lung capacity may indicate some component
of restrictive disease as well.” X-rays revealed
interstitial pulmonary infiltrates. A biopsy was conducted
and the pathology report revealed “mild chronic inflammation
. . No definite evidence of interstitial fibrosis is evident
on this biopsy. . . . No granulomas or metastatic tumor are
present.” The diagnosis was pneumonia, and was mentioned
again in a January 1992 letter from Robert J. Soffler, M.D.,
the veteran’s private pulmonologist. In February 1992 the
veteran was diagnosed with “atypical tuberculosis.” In
November 1992 another chest x-ray was conducted. It revealed
“multiple cysts or bullae in the lungs . . and pleural
thickening bilaterally.” A July 1994 progress note reveals
diagnosis of COPD and stable pulmonary fibrosis.
In December 1995 a VA examination of the veteran was
conducted. The veteran related a history of being “an
aircraft electrician for 20 years in the service and was
stationed onboard ship for most of that time. Working around
the aircraft did not give asbestos exposure, but there were
steam pipes all over the ship and in his living quarters and
they were working on them often and he believes he was
exposed to asbestos during these years.” A recent history of
exertional dyspnea was noted in the last two years. The
examining physician noted the veteran’s 1991 hospitalization
for pneumonia. He was also noted to be under the care of a
private pulmonologist who prescribed portable oxygen for the
veteran’s shortness of breath. On physical examination the
lungs were noted to “exhibit diminished breath sounds
throughout with no wheezes, rales or rubs noted.” The
diagnosis included chronic obstructive pulmonary disease and
a history of possible asbestos exposure. The accompanying
December 1995 VA radiology report reveals that the
radiologist was specifically aware of the veteran’s alleged
asbestos exposure and had reviewed prior x-ray examination
reports. The radiologist’s impression was “changes
consistent with pleural thickening and interstitial pulmonary
fibrosis.” Pulmonary function tests were also conducted.
The impression was mild obstruction with possible
restriction.
In February 1996 the physician who conducted the December
1995 VA examination provided a medical opinion after
reviewing all of the medical evidence of record. His opinion
was that the “chest x-ray finding of fibrosis and scarring
without pleural plaque formation, the failure to find
asbestosis in the transbronchial lung biopsy with clearing of
the nodules following treatment from pneumonia, the lack of a
seemingly significant asbestos exposure, the heavy smoking
history and the x-ray evidence of pulmonary fibrosis make it
likely in my opinion that the veteran’s current respiratory
disease is not due to asbestos exposure.”
In his August 1996 substantive appeal the veteran stated that
in his “medical records there is x-ray evidence of Pulmonary
Fibrosis. You state in your letter that exposure to asbestos
can cause Pulmonary Fibrosis. Who can determine if my
Pulmonary Fibrosis was caused from smoking or exposure to
asbestos?” The fact is that the private medical evidence
submitted by the veteran clearly shows that a lung biopsy was
conducted and no asbestos fibers were found.
“Asbestosis is a pneumoconiosis due to asbestos particles;
pneumoconiosis is a disease of the lungs caused by the
habitual inhalation of irritant mineral or metallic
particles.” McGinty v. Brown, 4 Vet.App. 428, 429 (1993).
Another similar definition of pneumoconiosis is “a condition
characterized by permanent deposition of substantial amounts
of particulate matter in the lungs, usually of occupational
or environmental origin.” Dorland’s Illustrated Medical
Dictionary, 1315 (28th ed., 1994). Furthermore, Dorland’s
states specific examples of pneumoconiosis which included
both asbestosis and pneumoconiosis of coal workers (black
lung).
The veteran’s exposure to asbestos during service is
questionable. While he did serve aboard Navy ships, he was
in an aviation rating. He did not work in the engineering
spaces where exposure to asbestos insulation was high;
rather, he worked servicing the airplanes. He admits that
his work on the airplanes did not expose him to asbestos.
However, even assuming for sake of argument that the veteran
was exposed to asbestos during active service, he is missing
other elements critical to making his claim well grounded.
The veteran does have a current diagnosis of COPD. However,
there is no competent medical evidence which relates any
currently diagnosed lung disorder to asbestos exposure.
Specifically, the Board notes that a lung biopsy was
conducted in 1991 and the results failed to show any asbestos
infiltrate in the veteran’s lungs. The veteran has had
considerable treatment by a private pulmonologist, yet this
physician has not related any lung disorder to asbestos
exposure. Finally, the VA examiner reviewed all of the
medical evidence of record and specifically stated that “in
my opinion that the veteran’s current respiratory disease is
not due to asbestos exposure.”
The veteran fails to show a current asbestos related lung
disability. He also has provided no evidence relating any
current lung disorder to asbestos exposure. The veteran
fails to show the required nexus between his current lung
disabilities, and any in-service asbestos exposure he may
have incurred. See Caluza, 7 Vet.App. at 506. There is no
medical evidence establishing a link to the veteran’s active
military service. See Rabideau v. Derwinski, 2 Vet.App. 141,
144 (1992); Franko v. Brown, 4 Vet.App. 502, 505 (1993). As
such the veteran does not meet the
The veteran does not meet the first and third elements
required for the claim to be well grounded. See Caluza, 7
Vet.App. at 506; Dean v. Brown, 8 Vet.App. 449, 455 (1995),
Slater v. Brown, 9 Vet.App. 240 (1996).
The Board has thoroughly reviewed the claims file. However,
we find no evidence of a plausible claim. Since the veteran
has not met his burden of submitting evidence sufficient to
justify a belief by a fair and impartial individual that the
claim is well grounded, it must be denied. See Boeck v.
Brown, 6 Vet.App. 14, 17 (1993) (if a claim is not well-
grounded, the Board does not have jurisdiction to adjudicate
it).
Where the veteran has not met this burden, the VA has no duty
to assist him in developing facts pertinent to his claim,
including no duty to provide him with another medical
examination. 38 U.S.C.A. § 5107(a) (West 1991); Rabideau,
2 Vet.App. at 144 (where the claim was not well-grounded, VA
was under no duty to provide the veteran with an
examination). However, where a claim is not well-grounded it
is incomplete, and depending on the particular facts of the
case, VA may be obliged under 38 U.S.C.A. § 5103(a) to advise
the claimant of the evidence needed to complete his
application. See Robinette v. Brown, 8 Vet.App. 69, 77
(1995). In this case, the RO substantially complied with
this obligation in the August 1996 Statement of the Case.
Epps v. Brown, 9 Vet.App. 341 (1996)
Although the RO did not specifically state that it denied the
veteran’s claim on the basis that it was not well-grounded,
we conclude that this error was harmless. See Edenfield v.
Brown, 8 Vet.App. 384 3 (1995)(en banc).
(CONTINUED ON NEXT PAGE)
ORDER
Because it is not well-grounded, the veteran’s claim for
service connection for a lung disorders as a residual of
asbestos exposure is denied.
BETTINA S. CALLAWAY
Member, Board of Veterans’ Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans’ Appeals.
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